Friday, November 13, 2009

The Constitution in 2020

The two decades of the Warren Court (1950s and 1960s) saw a decidedly liberal American constitutional jurisprudence with landmark cases like Brown v. Board of Education, 347 U.S. 483 (1954), Gideon v. Wainwright, 372 U.S. 335 (1963), Miranda v. Arizona, 384 U.S. 436 (1966), and Loving v. Virginia, 388 U.S. 1 (1967). With the Warren Court, constitutional law became more conservative aided in large part by Roe v. Wade, 410 U.S. 113 (1973) and the subsequent rise of the Federalist Society. Since the 1970s, with conservatism dominating American politics, constitutional law has shifted from a forward looking progressive jurisprudence to one that looks to past precedent and the plain language of the founders.

The shift from a conservative constitutional jurisprudence to a liberal, progressive one is the subject of The Constitution in 2020 by Jack Balkin and Reva Siegel (KF4550 .C576 2009) in the BLS Library collection. Inspired by a 2005 Yale Law School conference sponsored by the American Constitution Society and other progressive groups, the book seeks to define a progressive constitutional agenda for the coming century. The conference followed with a website with a blog, book reviews, sample chapters, related news items, bios of the authors, and related readings. The editors, two of America's leading constitutional scholars, provide a framework for addressing the most important constitutional issues of the future featuring a collection of 27 brief essays by notable "progressive" scholars of law and politics – Cass Sunstein, Bruce Ackerman, Robert Post, Harold Koh, Larry Kramer, Noah Feldman, Pam Karlan, William Eskridge, Mark Tushnet, Yochai Benkler and Richard Ford, and others. In addressing a wide range of issues, from the challenge of new technologies, presidential power, international human rights, religious liberty, freedom of speech, voting, reproductive rights, and economic rights, the book calls on liberals to articulate their constitutional vision to gain the confidence of ordinary Americans. Whether the “democratic constitutionalism” Balkin and Siegel offer will in fact lead to a new generation of liberal lawyers to counter the strict-constructionist conservative lawyers of the Federalist Society who dominated the federal courts in the Nixon, Reagan, Bush 41 and Bush 43 eras is uncertain.

A central idea of the book is that courts should pursue similar social justice ends as the Warren Court by using more modest, less activist means and acting with progressive political movements. It suggests that the courts are not the only players to promote social progress. “Decisions made by legislatures and executive officials about our rights are just as important” as judicial decisions, if not more so, Balkin and Siegel write in the introduction. They also state: “This book contests the conservative belief that we should cleanse constitutional law of contemporary understandings and restore the Constitution to an imagined past, a time when we obeyed the founders . . . We think the past several decades of conservative judging have often departed from the best understandings of the Constitution, as the contributors of this book explain in detail. But the goal of constitutional interpretation is not only restorative – it is also redemptive. Our Constitution is not only a bond with the past; it is a bond with the future, expressing commitments that the American people have yet fully to achieve.” The book, with the most provocative constitutional thought of the progressive movement, is certainly worth reading for anyone interested in politics or constituional law.